Matter of Rubey
2011 ND 165
| N.D. | 2011Background
- Miller and Mees, never married, cohabited for about two years and have a minor child together.
- They separated in 2007; Miller filed for primary residential responsibility in June 2009, Mees sought primary custody and visitation.
- District court initially granted Mees primary residential responsibility and Miller visitation on an interim basis.
- Mees obtained a temporary domestic violence protection order against Miller in Sept. 2009; order was dismissed after evidence did not justify a permanent order, and visitation was reinstated.
- A court-appointed parenting investigator, Oliger, filed a June 2010 report recommending Miller have primary residential responsibility; trial occurred July 2010, with Oliger testifying and cross-examination of her report.
- The district court awarded Miller primary residential responsibility, citing Oliger’s report and finding Miller’s and Mees’s conduct related to counseling, visitation, and credibility.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court erred by considering Miller's affidavits. | Mees argues affidavits were not presented in open court. | Mees contends trial based on affidavits violated Rule 43. | Not reversible; harmless under Rule 61; reliance on affidavits was harmless. |
| Whether the custody award to Miller was clearly erroneous under § 14-09-06.2. | Mees contends factors favored her or none favored Miller; asks for reversal. | Miller asserts district court properly weighed factors and did not err. | No clear error; district court’s findings supported Miller’s award. |
| Whether the district court properly weighed best-interests factors in light of Oliger’s report. | Mees argues the court disregarded her position and credibility. | Miller relies on Oliger’s report and trial testimony. | Court did not err; it properly afforded weight to Oliger and substantial evidence. |
Key Cases Cited
- Lawrence v. Delkamp, 2008 ND 111, 750 N.W.2d 452 (N.D. 2008) (oral testimony preferred; substantial discretion in custody decisions)
- In Interest of Gust, 345 N.W.2d 42 (N.D. 1984) (oral testimony preferred; general rule for admissibility in court)
- Wolt v. Wolt, 2010 ND 26, 778 N.W.2d 786 (N.D. 2010) (substantial discretion; must consider all factors; not a reweighing standard)
- Brown v. Brown, 1999 ND 199, 600 N.W.2d 869 (N.D. 1999) (custody decisions involve weighing multiple factors; deference to trial judge's credibility)
- Doll v. Doll, 2011 ND 24, 794 N.W.2d 425 (N.D. 2011) (appeal limited; not reweighing evidence; credibility determinations reserved for trial court)